Terms of Service

�Welcome to pencil.domains! Thanks for using the pencil.domains services (including its website, and mobile and web-based applications, and any other tools, products, or services provided by Pencil Works, LLC that link to or reference these Terms) (collectively, the “Services”). The Services are provided by Pencil Works, LLC (“Pencil Works”, “we,” “our,” or “us”), located at P.O. Box Sunset Lk Road, Suit B-2 Newark, DE 19702, U.S.A. By using our Services, you are agreeing to these Terms of Service (“Terms”). Please read them carefully. Our Services are very diverse, so sometimes additional terms or product requirements (including age requirements) may apply. If additional terms or conditions are available with or applicable to the relevant Services, then those additional terms become part of your agreement with us if you use those Services. By accessing or using the Services, you intend and agree to be legally bound by these Terms. You may wish to print or save a local copy of the Terms for your records. YOU ACKNOWLEDGE AND AGREE THAT THESE TERMS OF SERVICE LIMIT OUR LIABILITY AND THAT YOU ARE RELEASING US FROM VARIOUS CLAIMS IN SECTION 13 BELOW. THESE TERMS ALSO CONTAIN A BINDING ARBITRATION PROVISION IN SECTION 18 THAT AFFECT YOUR RIGHTS UNDER THESE TERMS WITH RESPECT TO THE SERVICES.

  1. Renting Domains

Our Services enable you to register certain second level domains on the decentralized, permissionless, blockchain-based naming protocol further described at handshake.org and hns-dev.org (the “Handshake Protocol”, and each such top-level domain on the Handshake Protocol, a “Handshake TLD”). As part of the registration process for second level domains on Handshake TLDs, we may require you to provide (and timely update in the event of any change) certain information required by us or the Handshake Protocol in order to register or maintain your second level domain (“Registration Information”). You agree that all Registration Information you provide to us will be accurate, complete, and timely updated in the event of any change. We reserve the right to list, not list, or withdraw Handshake top level domains ("TLDs") that are available for rent via the Services our sole discretion. You acknowledge that Handshake TLDs may have unique eligibility requirements. Accordingly, before you rent any second level domain on a Handshake TLD, you should review the Handshake Protocol or other registry rules, policies, and agreements for the Handshake TLD in question to ensure that you can comply with all eligibility requirements and will be able to register the domain upon a successful rent. You agree that we, in our sole discretion and without liability to you, may refuse to accept the registration of any domain to you. In addition, we cannot and do not check to see whether any domain you select, or the use you make of any domain, or any other use of the Services, violates the legal rights of others. It is your sole responsibility to know whether or not any domain you select or use violates the legal rights of others. We may be ordered by a court to cancel, modify, or transfer your domain; it is your responsibility to list accurate Registration Information in association with your account and to communicate with litigants, potential litigants, and governmental authorities. It is not our responsibility to forward court orders or other communications to you. You agree to be bound by the appropriate domain dispute resolution policy prescribed by the Handshake TLD registry, if any. We may, in our sole and absolute discretion, choose to assist you in facilitating the resolution of any disputes between you and a third party regarding your domain, provided, however, that we have no obligation to do so, and we do not assume any responsibility or liability as a result of offering such assistance to you. You understand and acknowledge that, in some cases, you may be unable to transfer a domain to another registrar or other third party for up to sixty (60) days after you rent the domain, or a different amount of time established by the Handshake TLD registry. This restriction helps us avoid domain theft. After you rent a Domain, it becomes a “Parked Domain,” as used elsewhere in these Terms. We are not an auctioneer or an escrow agent. Although we may temporarily take possession of a domain to facilitate its auction, we do not perform any diligence or make any representations or warranties regarding these domain names. We have no control over the quality, safety or legality of the domain names listed within our Services.

  1. Parked Domains

You understand and acknowledge that, in some cases, you may be unable to transfer a Parked Domain to another registrar for up to sixty (60) days after you rent the domain. This restriction helps us avoid domain theft. We may also place advertisements on, and collect revenue from, your Parked Domains while they are parked with us, and we will retain all revenue from such activity. You authorize us to do so without any further obligation to you. If the change of ownership in the Parked Domain is not completed for any reason, including but not limited to, due to either party’s fraudulent activity, you acknowledge and agree that we have no liability or responsibility regarding the same. In all cases, we do not make any representations or warranties regarding the change of ownership of the Parked Domain, and we expressly disclaim all liability or responsibility regarding the same. The Services also enable you to link to Escrow.com, which you can use to sell your Parked Domain. All sales of Parked Domains are subject to Escrow.com’s Terms of Use, and we expressly disclaim all liability or responsibility regarding the sale of a Parked Domain through Escrow.com. You can read Escrow.com’s Terms of Use by visiting https://www.escrow.com/escrow-101/terms-of-use.

  1. Renewal Responsabilties

    1. 1 Mails from Pencil Works LLC about renewals

      1. We do not use email but in case in a future we will:

        1. We’ll send you several emails on the platform, reminding you to renew your Parked Domain before your registration expires. It is your responsibility to ensure that the email address you’ve associated with your Services account is accurate, current, and equipped to receive our emails (i.e., your inbox isn’t full), and that you have not unsubscribed from, marked as spam, or otherwise blocked emails from us regarding your Parked Domain. We have no responsibility or liability if your registration expires.We typically send email reminders to renew your Parked Domain: thirty (30) days before expiration, fifteen (15) days before expiration, eight (8) days before expiration, and finally one (1) day before expiration, but reserve the right to change these at any time and with or without no notice to you. If you have not renewed your Parked Domain within two (2) weeks after it has expired, we will remove the Parked Domain from your Services account, and we reserve the right to list or not to list your expired Parked Domain for sale via the Services in our sole discretion.

You are solely responsible for ensuring that any and all domains are renewed prior to their expiration, should you so desire their renewal. You may renew your domain at any time before the expiration date. We shall have no liability to you or any third party in connection with the renewal, including, but not limited to, any failure or errors in renewing a domain via the Services. If you have selected automatic renewal for a domain, you must maintain valid HNS Wallet or other payment account information with us as described in Section 7 below, and you further authorize us, but do not obligate us, to automatically charge your HNS Wallet or other payment account and renew the applicable domain on or before its renewal date using such HNS Wallet or other payment account, unless you notify us that you no longer wish to participate in our automatic renewal process. We must receive notification of your intent to not renew (opt-out) in writing or via the Services no later than fourteen (14) days prior to the renewal date. In the absence of such notification from you, we will automatically renew, for a period of one (1) year, such domain and will charge the HNS Wallet or other payment account you have on file with us, at our then-current rates. If the HNS Wallet or other payment account has expired or is otherwise invalid, you are solely responsible for any failure to renew your domain, and we will not be liable for your failure. Should you choose not to renew your domain, you agree that we may, in our sole discretion, renew and transfer the domain to a third party.

  1. Registration Privacy

Initially, the registrant identification for your Parked Domain is set as “pencil.domains privacy”. While the registration identification is set as “pencil.domains privacy” you authorize us to consent to material changes of registration contact information on your behalf and act as your Designated Agent. If you set the registration identification as “pencil.domains privacy” then you authorize us to consent to material changes of registration contact information on your behalf and act as your Designated Agent. You can update this information to your own contact information at any time by visiting your account domains page. There, you can also choose to have your contact information shared with domain registries and other registrars in order to become part of the WHOIS database. Unless you choose to share this information, we will not add the contact information for your Parked Domain to the WHOIS database.

  1. Using our Services

You must follow any policies made available to you within the Services, including our acceptable use policy. Don’t misuse our Services. For example, don’t interfere with our Services, try to access them using a method other than the interface and the instructions that we provide, or extensively or automatically copy any content from the Services (in other words, no scraping). You may use our Services only as permitted by law, including applicable export and re-export control laws and regulations. We may suspend or stop providing our Services to you if you do not comply with our terms or policies, if we are investigating suspected misconduct, or for any other reason. Using our Services does not give you ownership of any intellectual property rights in our Services or the content you access through them (“Content”). You may not use content from our Services, except as permitted by its owner or as otherwise permitted by law. These Terms do not grant you the right to use any branding or logos used in our Services, including the Pencil Works and pencil.domains names and logos. Don’t remove, obscure, or alter any legal notices displayed in or along with our Services. Our Services display some Content that is not our own, for example, Content belonging to our advertisers, other third parties, you, or other users (collectively, “Third Party Content”). We are not responsible for, and you waive all of our liability with respect to, Third Party Content. Third Party Content is the sole responsibility of the individual or entity that makes it available to you via the Services. We may review Third Party Content to determine whether it is illegal or violates our policies, and we may remove or refuse to display Third Party Content that we believe violates our policies or the law. But we do not generally review content beforehand, and we are not obligated to do so. In connection with your use of the Services, we may send you service announcements, administrative messages, and other information. You may opt out of some of those communications, for example, by clicking on the “unsubscribe” link in marketing e-mails.Please be aware that there may be a brief period before we are able to process your opt-out. Please also be aware that opting out of service announcements and administrative messages may cause you to miss important messages about your Parked Domains, like renewal notices. Some of our Services are available on mobile devices or may utilize SMS/iMessage, which may cause you to incur SMS or data charges with your wireless provider. Please be aware that we have no control over these charges, and if you do not wish to be charged, you should stop using the mobile or SMS/iMessage features (as applicable).

  1. Your Services Account

You need an account in order to use the Services. If you create your own account, you agree that all registration information you give us will be accurate and current. If your account has been assigned to you by an administrator, such as your employer or educational institution, different or additional terms may apply and your administrator may be able to access or disable your account. You will timely notify us of any changes to any of the foregoing information. You are responsible for controlling access to any PCs, mobile devices, or other end points that you allow to store your Services password, or on which you enable a "Remember Me" or similar functionality ("Activated Device"). Accordingly, you agree that you will be solely responsible for all activities that occur under your Services accounts, including the activities of any individual with whom you share your Services account or an Activated Device. To protect your account, keep your password confidential. You are responsible for the activity that happens on or through your account. If you learn of any unauthorized use of your password, please contact us at it@pencil.domains .

  1. Payment

You agree to pay all amounts owed to us for the Services and domain names under any terms, policies or other written or electronic agreement we may have in place. We, or our third-party payment service providers (such as Stripe Inc.), may require you to maintain valid HNS Wallet or other payment account information with us in order to receive the Services, and if so, you hereby authorize us and/or them (as applicable) to charge your HNS Wallet or other payment account for the Services. Any failure to maintain valid, up-to-date payment information with us or to keep your payments current will constitute a material breach of these terms, for which we may suspend or terminate your access to the Services immediately without notice. Without limiting the foregoing, in the event of a charge-back to us for the HNS Wallet or other payment account used in connection with your payment of the registration or other fee, you agree and acknowledge that the domain name registration will be transferred back to us, as the entity paying for that domain name, and that we reserve all rights regarding such domain name, including, without limitation, the right to make such domain name available to other parties for rent. In our sole discretion, we may reinstate your domain name registration, subject our your payment of the registration fee and any administrative and/or chargeback fees we incur inconnection with a charge-back. Without limiting anything else in this section, interest will also be charged on all unpaid delinquent amounts at the rate of 1.5% per month or the highest rate permitted by applicable law, whichever is lesser. You agree to reimburse us for all collection agency fees, attorneys’ fees and other costs we may incur to collect delinquent amounts you owe to us. You can also prepay for Parked Domains using the Services, in which case we’ll credit your account and apply this credit to all new rents or renewals of your existing Parked Domain registrations moving forward.

  1. Privacy and Feedback

Our privacy policy explains how we treat your personal information and protect your privacy when you use our Services. By using our Services, you agree that we can collect, use, and share data from you as described in our privacy policy. We are not responsible for any information or Content collected by users that you submit or make available via your use of the Services. You assume all privacy, security, and other risks associated with providing any information, including personally identifiable information, to other users of the Service. If you submit feedback or suggestions about our Services, you agree that we may use your feedback or suggestions without obligation to you.

  1. Content You Submit or Share

You may submit text and other content to or through the Services (“Your Content”), and in doing so you must follow these Terms and the rules and policies referenced in these Terms. You retain ownership of any intellectual property rights that you hold in Your Content. In short, what belongs to you stays yours. When you upload, submit, or otherwise share Your Content to or through our Services, you give us (and those we work with) a royalty-free, worldwide license to use, host, store, reproduce, modify, create derivative works (such as those resulting from translations, adaptations or other changes we make so that Your Content works better with our Services), communicate, publish, publicly perform, publicly display and distribute Your Content. The rights you grant in this license are for the limited purpose of operating, promoting, and improving our Services, and to develop new ones. This license continues even if you stop using our Services. Make sure you have the necessary rights to grant us this license for any content that you submit to our Services. You may request that we delete any of Your Content that you submit to the Services by sending us an email at it@pencil.domains . To the extent within our control we’ll remove Your Content from public display and mark it for future deletion if permitted by applicable law; however, it may persist in backup or residual copies for a reasonable period of time. For purposes of clarification, once you submit or share Your Content with others via the Services (e.g., other users or third parties), we no longer have control over those portions of Your Content and will not be able to delete it or prevent them from using it. You agree that you will not use the Services to:
  • Violate law or a third-party’s rights;
  • Submit excessive or unsolicited commercial messages or spam any users;
  • Submit malicious content or viruses;
  • Solicit other people’s login information, HNS Wallet numbers, or other sensitive information;
  • Harass or bully other users; or
  • Post content that is hate speech, threatening or pornographic, that incites violence or that contains nudity or graphic or gratuitous violence.

  1. INTELLECTUAL PROPERTY PROTECTION

As we ask others to respect our intellectual property rights, we respect the intellectual property rights of others, and require our users and customers to do so. If you are a copyright owner or its agent and believe that any content residing on or accessible through the Services infringes upon your copyrights, you may submit a notification under the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent (the “Designated Agent”) with the following information in writing (see 17 U.S.C § 512(c)(3) for further detail):
  • Identification of the work or material being infringed.
  • Identification of the material that is claimed to be infringing, including its location, with sufficient detail so that we are capable of finding it and verifying its existence.
  • Contact information for the notifying party (the "Notifying Party"), including name, address, telephone number, and email address.
  • A statement that the Notifying Party has a good faith belief that the material is not authorized by the copyright owner, its agent or law.
  • A statement made under penalty of perjury that the information provided in the notice is accurate and that the Notifying Party is authorized to make the complaint on behalf of the copyright owner.
  • A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed.
Please also note that the information provided in a notice of copyright infringement may be forwarded to the user who posted the allegedly infringing content. After removing material in response to a valid DMCA notice, we will notify the user responsible for the allegedly infringing material that we have removed or disabled access to the material. We will terminate, under appropriate circumstances, users who are repeat copyright infringers, and we reserve the right, in our sole discretion, to terminate any user for actual or apparent copyright infringement. If you believe you are the wrongful subject of a DMCA notification, you may file a counter-notification with us by providing the following information to the Designated Agent at the address below:
  • The specific URLs of material that we have removed or to which we have disabled access.
  • Your name, address, telephone number, and email address.
  • A statement that you consent to the jurisdiction of U.S. District Court for the Eastern District of Pennsylvania, and that you will accept service of process from the person who provided the original DMCA notification or an agent of such person.
  • The following statement: "I swear, under penalty of perjury, that I have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled."
  • Your signature.
Upon receipt of a valid counter-notification, we will forward it to Notifying Party who submitted the original DMCA notification. The original Notifying Party (or the copyright holder he or she represents) will then have ten (10) days to notify us that he or she has filed legal action relating to the allegedly infringing material. If we do not receive any such notification within ten (10) days, we may restore the material to the Services. The contact information for our Designated Agent is: Pencil Works, LLC Attention: Copyright Agent P.O. Box Sunset Lk Road Suit B-2 Newark, DE 19702 Email: it@pencil.domains   If you believe that any of your intellectual property rights other than copyrights have been infringed, please e-mail us at it@pencil.domains We reserve the right, in our sole and absolute discretion, to suspend or terminate any user who infringes the intellectual property rights of Pencil Works or others, and/or to remove, delete, edit or disable access to such person’s content. You agree that we have no liability for any action taken under this section.

  1. About Software in our Services

The Services may enable you to access software running on our (or our vendors’) servers (collectively, “Software”). You agree that we retain the ownership of all rights, title, and interest in and to the Software. Pencil Works gives you a personal, worldwide, royalty-free, non-assignable, and non-exclusive license to use the Software to access the Services. This license is for the sole purpose of enabling you to use and enjoy the benefit of the Services as provided by us, in the manner permitted by these Terms. You may not copy, modify, distribute, sell, or lease any part of our Services or Software, nor may you reverse engineer or attempt to extract the source code of the Services or Software, unless laws prohibit those restrictions or you have our written permission. There may be software programs contained within certain Software that have been licensed to us by third parties. The term "Software" as used herein shall refer to this third-party software except where the term “Software” is used in the context of our ownership. The same terms and conditions, including all limitations and restrictions, set forth in these Terms apply to each third-party software program contained in the Software. You acknowledge and agree that any third-party components are owned by their applicable licensors. We do not make any representations or warranties about the operation or availability of such third-party software. Neither we, nor our licensors, shall be liable for any unavailability or removal of such third-party software. We are not responsible for any communications to or from such licensors, or for the collection or use of information by such licensors. You consent to the communications enabled and/or performed by such third-party software, including automatic updating of the third-party software without further notice. You agree that such third-party software licensors are intended third-party beneficiaries under these Terms.

  1. Modifying and Terminating our Services

We are constantly changing and improving our Services. We may add or remove functionalities or features, and we may suspend or stop a Service altogether, at any time, without any notice or liability. You can stop using our Services at any time, although we’ll be sorry to see you go. We may also stop providing Services to you, or add or create new limits to our Services, at any time. Sections 12 – 18 will survive termination or expiration of these Terms indefinitely.

  1. Our Warranties and Disclaimers

OTHER THAN AS EXPRESSLY SET OUT IN THESE TERMS, NEITHER PENCIL WORKS NOR ITS LICENSORS, SUPPLIERS, ADVERTISERS, OR DISTRIBUTORS MAKE ANY SPECIFIC PROMISES ABOUT THE SERVICES. FOR EXAMPLE, WE DON’T MAKE ANY COMMITMENTS ABOUT THE CONTENT WITHIN THE SERVICES, THE SPECIFIC FUNCTIONS OF THE SERVICES, OR THEIR RELIABILITY, AVAILABILITY, OR ABILITY TO MEET YOUR NEEDS. WE ALSO DO NOT MAKE ANY WARRANTIES OR COMMITMENT RELATING TO NON-INFRINGEMENT, FREEDOM FROM VIRUSES OR OTHER HARMFUL CODE, OR ERROR-FREE OR UNINTERRUPTED OPERATIONS. WE PROVIDE THE SERVICES “AS-IS.” SOME JURISDICTIONS PROVIDE FOR CERTAIN WARRANTIES, LIKE THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. TO THE EXTENT PERMITTED BY LAW, WE DISCLAIM ALL WARRANTIES. YOU AND YOUR HEIRS, SUCCESSORS, AND ASSIGNS HEREBY FOREVER IRREVOCABLY RELEASE, DISCHARGE, AND HOLD HARMLESS US, OUR AFFILIATES, AND OUR AND THEIR SUCCESSORS AND ASSIGNS, AND ITS AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS (COLLECTIVELY, “RELEASED PARTIES”) FROM, AND AGREE NOT TO SUE ANY RELEASED PARTY FOR, ANY LIABILITIES, CLAIMS, OBLIGATIONS, SUITS, ACTIONS, DEMANDS, EXPENSES, AND DAMAGES WHATSOEVER (COLLECTIVELY, “LIABILITIES”) THAT YOU MAY HAVE AGAINST ANY RELEASED PARTY WHETHER EXISTING NOW OR IN THE FUTURE, WHETHER KNOWN OR UNKNOWN, ARISING OUT OF OR IN CONNECTION WITH YOUR OR A THIRD PARTY’S CONDUCT RELATED TO USE OF THE SERVICES. YOU UNDERSTAND AND ACKNOWLEDGE THAT THE FOREGOING SENTENCE RELEASES AND DISCHARGES ALL LIABILITIES, WHETHER OR NOT THEY ARE CURRENTLY KNOWN TO YOU, AND YOU WAIVE YOUR RIGHTS UNDER CALIFORNIA CIVIL CODE SECTION 1542.

  1. Liability for our Services

WHEN PERMITTED BY LAW, PENCIL WORKS (AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS) AND OUR LICENSORS, SUPPLIERS, ADVERTISERS, AND DISTRIBUTORS, WILL NOT BE RESPONSIBLE FOR LOST PROFITS, REVENUES, OR DATA, FINANCIAL LOSSES OR INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES. TO THE EXTENT PERMITTED BY LAW, THE TOTAL LIABILITY OF PENCIL WORKS (AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS) AND OUR LICENSORS, SUPPLIERS, ADVERTISERS, AND DISTRIBUTORS, FOR ANY AND ALL CLAIMS UNDER THESE TERMS OR RELATING TO YOUR USE OF THE SERVICES, INCLUDING FOR ANY IMPLIED WARRANTIES, IS LIMITED TO THE AMOUNT YOU PAID US TO USE THE SERVICES (OR, IF WE CHOOSE, TO SUPPLYING YOU THE SERVICES AGAIN). IN ALL CASES RELATING TO PROVIDING YOU THE SERVICES, PENCIL WORKS (AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS) AND ITS LICENSORS, SUPPLIERS, ADVERTISERS, AND DISTRIBUTORS, WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE THAT IS NOT REASONABLY FORESEEABLE OR THAT IS DUE TO EVENTS OUTSIDE OF OUR REASONABLE CONTROL, SUCH AS WARS, CRIMINAL ACTIVITIES, STORMS, NATURAL DISASTERS, ACTS OF GOVERNMENT, SUPPLY INTERRUPTIONS, OR TELECOMMUNICATION OR INTERNET FAILURES.

  1. Business/Employer Uses of our Services

If you are using our Services on behalf of a business or employer, you are accepting these Terms on their behalf, and that business or employer agrees to be bound by these Terms.

  1. Indemnification

You hereby agree to indemnify, defend, and hold harmless Pencil Works, its affiliated companies, and its and their predecessors, successors, and assigns, and its and their respective directors, officers, employees, agents, representatives, partners, and contractors from and against all claims, losses, expenses, damages and costs (including, but not limited to, reasonable attorneys' fees), resulting from or arising out of your actual or alleged breach of these Terms, any content you provide through the Services, or your use or misuse of the Services. However, you will not be responsible for claims, damages, and costs which are found by a court of competent jurisdiction to have arisen solely from our violation of applicable law.

  1. About these Terms

We may modify these Terms or any additional terms that apply to a Service for any reason, for example, to reflect changes to the law or changes to our Services. You should look at the Terms regularly and the “Last Updated” date at the beginning of these Terms. We’ll use reasonable efforts to give you notice of these modifications, such as posting notice of modifications to these Terms on this web page, through the Services, or via email. By continuing to use the Services after we make these modifications, you agree that you will be subject to the modified Terms. If you do not agree to the modified terms for a Service, you should discontinue your use of that Service. If there is a conflict between these Terms and any additional terms for a Service, the additional terms will control for that conflict. These Terms control the relationship between Pencil Works and you. They do not create any third-party beneficiary rights (except in the limited case of Section 17). If you do not comply with these Terms, and we don’t take action right away, this doesn’t mean that we are giving up any rights that we may have (such as taking action in the future). If it turns out that a particular term is not enforceable, this will not affect any other terms. The laws of the United States and the Commonwealth of Pennsylvania, excluding Pennsylvania’s conflict of laws rules, will apply to any disputes arising out of or relating to these terms or the Services. You may not assign or delegate your rights or obligations relating to these terms or your account for the Services without our prior written consent. We may assign these terms or assign or delegate any of our rights or obligations at any time. For information about how to contact Pencil Works, please visit our contact page.

  1. Binding Arbitration

Without limiting your waiver in Section 13, you agree to the following:

  1. Purpose. Any and all Disputes (as defined below) involving you and Pencil Works will be resolved through individual arbitration. In arbitration, there is no judge or jury and there is less discovery and appellate review than in court. This Section 18 (the "Arbitration Provision") shall be broadly interpreted. Notwithstanding anything to the contrary in these Terms, this Section 18 does not apply to an action by either party to enjoin the infringement or misuse of its intellectual property rights, including copyright, trademark, patent, or trade secret rights.
  2. Definitions. The term "Dispute" means any claim or controversy related to the Services or the Software, including but not limited to any and all: (1) claims for relief and theories of liability, whether based in contract, tort, fraud, negligence, statute, regulation, ordinance, or otherwise; (2) claims that arose before these Terms or any prior agreement; (3) claims that arise after the expiration or termination of these Terms; and (4) claims that are currently the subject of purported class action litigation in which you are not a member of a certified class. As used in this Arbitration Provision, "Pencil Works" means Pencil Works LLC and any of its predecessors, successors, assigns, parents, subsidiaries and affiliated companies and each of their respective officers, directors, employees and agents, and “you” means you and any users or beneficiaries of your access to the Services or the Software.
  3. Initiation of Arbitration Proceeding/Selection of Arbitrator. The party initiating the arbitration proceeding may open a case with JAMS, formerly Judicial Arbitration and Mediation Services, Inc., (“JAMS”) by visiting its website (www.jamsadr.com) or calling its toll-free number (1-800-352-5267). You may deliver any required or desired notice to Pencil Works by mail to P.O. Box 15004 Philadelphia, PA 19130.
  4. Right to Sue in Small Claims Court. Notwithstanding anything in this Arbitration Provision to the contrary, either you or Pencil Works may bring an individual action in a small claims court in the area where you access the Services if the claim is not aggregated with the claim of any other person and if the amount in controversy is properly within the jurisdiction of the small claims court.
  5. Arbitration Procedures. This Arbitration Provision shall be governed by the Federal Arbitration Act. Arbitrations shall be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures (the “JAMS Rules”) as modified by the version of this Arbitration Provision that is in effect when you notify Pencil Works about your Dispute. You can obtain the JAMS Rules from the JAMS by visiting its website (www.jamsadr.com) or calling its toll-free number (1-800-352-5267). If there is a conflict between this Arbitration Provision and the rest of these Terms, this Arbitration Provision shall govern. If there is a conflict between this Arbitration Provision and the JAMS rules, this Arbitration Provision shall govern. If JAMS will not administer a proceeding under this Arbitration Provision as written, the parties shall agree on a substitute arbitration organization. If the parties cannot agree, the parties shall mutually petition a court of appropriate jurisdiction to appoint an arbitration organization that will administer a proceeding under this Arbitration Provision as written applying the JAMS Rules. A single arbitrator will resolve the Dispute. Unless you and Pencil Works agree otherwise, any arbitration hearing will take place in Philadelphia, PA . The arbitrator will honor claims of privilege recognized by law and will take reasonable steps to protect customer account information and other confidential or proprietary information. The arbitrator shall issue a reasoned written decision that explains the arbitrator’s essential findings and conclusions. The arbitrator’s award may be entered in any court having jurisdiction over the parties only if necessary for purposes of enforcing the arbitrator’s award. An arbitrator’s award that has been fully satisfied shall not be entered in any court.
  6. Waiver of Class Actions and Collective Relief. THERE SHALL BE NO RIGHT OR AUTHORITY FOR ANY CLAIMS TO BE ARBITRATED OR LITIGATED ON A CLASS ACTION, JOINT OR CONSOLIDATED BASIS OR ON BASES INVOLVING CLAIMS BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC (SUCH AS A PRIVATE ATTORNEY GENERAL), OTHER SUBSCRIBERS, OR OTHER PERSONS. THE ARBITRATOR MAY AWARD RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT INDIVIDUAL PARTY’S CLAIM. THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING.
  7. Arbitration Fees and Costs. If your claim seeks more than $75,000 in the aggregate, the payment of the JAMS’s fees and costs will be governed by the JAMS Rules. If your claims seek less than $75,000 in the aggregate, the payment of the JAMS’s fees and costs will be Pencil Works’s responsibility. However, if the arbitrator finds that your Dispute was frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), the payment of the JAMS’s fees and costs shall be governed by the JAMS Rules and you shall reimburse Pencil Works for all fees and costs that were your obligation to pay under the JAMS Rules. You may hire an attorney to represent you in arbitration. You are responsible for your attorneys’ fees and additional costs and may only recover your attorneys’ fees and costs in the arbitration to the extent that you could in court if the arbitration is decided in your favor. Notwithstanding anything in this Arbitration Provision to the contrary, Pencil Works will pay all fees and costs that it is required by law to pay.
  8. Severability and Waiver of Jury Trial. If any part of subsection (f) of this Arbitration Provision is found to be illegal or unenforceable, the entire Arbitration provision will be unenforceable and the Dispute will be decided by a court. WHETHER IN COURT OR IN ARBITRATION, YOU AND Pencil Works AGREE TO WAIVE THE RIGHT TO A TRIAL BY JURY TO THE FULLEST EXTENT ALLOWED BY LAW. If any other clause in this Arbitration Provision is found to be illegal or unenforceable, that clause will be severed from this Arbitration Provision and the remainder of this Arbitration Provision will be given full force and effect.
  9. Continuation. This Arbitration Provision will survive the termination or expiration of these Terms.

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